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2d 729
The subject matter of this appeal is a number of gambling devices of the slot
machine variety, seized in Prince George's County, Maryland, under a libel
instituted by the Government. The appellant intervened as claimant and, the
facts being undisputed, the Government's motion for summary judgment was
granted. Thereupon, the Marshal was ordered to deliver the machines to the
Attorney General for destruction, and this appeal followed.
The appellant operates slot machines in its amusement park in Calvert County,
Maryland, which county is exempt from the Maryland statutory prohibition
against use of such gambling devices. Maryland Code of Public Local Laws,
Art. 5, Secs. 176-177C. On March 4, 1954, forty-two such machines were
delivered to the farm of one of its officers in Prince George's County, Maryland.
Concededly, this county (unlike Calvert County) is subject to the Maryland
statute prohibiting the use of gambling devices. Md.Code Annot. 1951, Art. 27,
303-330. The following day, appellant purchased the machines. Although
the appellant's officers say they thought the machines were being sent from
Cumberland, Maryland, they were in fact transported from Parkersburg, West
Virginia. The machines were thereafter stored at the farm in Prince George's
County awaiting future use, but two of them were taken sixteen months later, to
the amusement park in Calvert County. The other forty never left Prince
George's County until they were seized by the agents of the Federal Bureau of
Investigation, eighteen months later, on September 8, 1955. At the same time,
the two machines which had been taken to the amusement park in Calvert
County two months earlier were brought back to Prince George's County at the
instance of the Government agents.
The United States then filed its libel in the District Court, seeking forfeiture of
the machines under Section 1177. The appellant intervened as claimant and
resisted the forfeiture. The individuals who had transported the machines from
West Virginia were brought to trial and convicted under Section 1172 prior to
the hearing of this case in the District Court.
The appellant's primary contention is that the machines are not subject to
forfeiture under Section 1177 because the Maryland Legislature, by permitting
the use of gambling devices in Calvert County, thereby exempted that county
from the prohibition of Section 1172. We think this contention cannot avail the
appellant for two reasons: First, because the Maryland statute regarding Calvert
County is not effective to create an exemption of that county from the
provisions of the Johnson Act; second, because, in any event, these machines
were transported into Prince George's County and remained there from sixteen
to eighteen months. There is no basis whatever for claiming an exemption of
Prince George's County from any Maryland legislation against gambling and
gambling devices.
The Maryland Act sanctioning the use of gambling devices in Calvert County
was originally passed in 1948, prior to the Johnson Act, and although reenacted in 1951 subsequent to the Johnson Act, it makes no reference to the
Congressional enactment. Nor does it state explicitly or in substance that
interstate shipment of gambling machines into Calvert County shall not be
unlawful. The Act merely immunizes that county from the general statute of the
State of Maryland which outlaws gambling machines. While the United States
contends that the legislature's failure to refer to the Johnson Act prevents us
from according to Calvert County the exemption permitted by Section 1172,
the appellant insists that reference to the federal statute is not required.
Appellant's reasoning is that since Section 1172 is phrased in the "past" tense, it
meant to include in the exemption from the Johnson Act any state or
subdivision which "has enacted" a statute prior to the passage of the Johnson
Act. The appellant further says that as such state statutes obviously could not
have made reference to a federal statute not yet in existence, a fair interpretation
of the proviso is that the purpose of Section 1172 was to implement existing
state legislation relating to gambling by exempting from the prohibitions of the
Johnson Act any area where the state permitted gambling.
7
Even were we to hold that the Maryland law regarding Calvert County satisfies
the exemption provision of Section 1172, we do not perceive how it could
comfort appellant. This is not a case where goods destined for one jurisdiction
have merely passed through another jurisdiction en route because of
geographical necessity. Nor did the property have a merely temporary situs in
Prince George's County while in transit. In such cases, it might be contended
that the law in the place of ultimate destination affords protection. In this case it
is undisputed that the machines libeled came to rest in Prince George's County.
Forty of them remained there for eighteen months without ever being taken to
Calvert County, and the remaining two were stored in Prince George's County
for sixteen months. By reposing for many months in Prince George's County
after being shipped from West Virginia, the two machines also became clearly
subject to the right of the United States to libel them.
9
Lastly, the appellant contends that since it had no knowledge that the machines
were transported in interstate commerce, forfeiture is not permissible. But
scienter of the owner is not a material fact in an in rem action against the
machines under Section 1177. J. W. Goldsmith, Jr.-Grant Co. v. United States,
254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; Busic v. United States, 4 Cir., 149
F.2d 794. It is sufficient for forfeiture that the machines were the subject of a
violation of Section 1172, which forbids their transportation in interstate
commerce "knowingly," that is to say, on the part of the transporter. This
knowledge is not disputed.
10
The District Judge, it may be observed parenthetically, noted that he did not
find as a fact that the owners were without such knowledge, but he held that
such knowledge on their part (as distinguished from that of the importers) is
immaterial. We agree. Assuming that the purchaser acted in good faith, this has
no real bearing on the issue, for "the forfeiture becomes absolute at the
commission of the prohibited acts." Henderson's Distilled Spirits, 14 Wall. 44,
57, 81 U.S. 44, 57, 20 L.Ed. 815.
The District Court's order is therefore
11
Affirmed.